IN THE UNITED STATES DISTRICT COURT FOR THE … · REPORT AND RECOMMENDATION ... Joanna Ramsey, as...

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK

LeCHRISTIAN STEPTOE,

Plaintiff,Civil Action No.

v. 5:09-CV-1132 (NPM/DEP)

THE CITY OF SYRACUSE andTHE GENESEE GRANDE HOTEL,

Defendants.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF:

LeCHRISTIAN STEPTOE, Pro Se1108 East Genesee StreetApt. 302Syracuse New York 13210

FOR DEFENDANT CITY OFSYRACUSE:

HON. MARYANNE DOUGHERTY JOSEPH DOYLE, ESQ.Corporation Counsel Assistant Corporation Counsel233 East Washington Street 300 City Hall Syracuse, NY 13202

FOR DEFENDANT THE GENESEEGRANDE HOTEL:

COSTELLO, COONEY LAW FIRM ROBERT CONNOLLY, ESQ.

500 Plum Street, Suite 300 PAUL FERRARA, ESQ.Syracuse, NY 13204-1401

Case 5:09-cv-01132-NPM-DEP Document 139 Filed 11/01/11 of 44

DAVID E. PEEBLESU.S. MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Plaintiff LeChristian Steptoe, a law school graduate who is

proceeding pro se and in forma pauperis, has commenced this action

pursuant to 42 U.S.C. § 1983 against defendants The City of Syracuse

(“City”) and The Genesee Grande Hotel (“Hotel”) alleging deprivation of

his civil rights. The plaintiff’s claims stem from his arrest in September of

2009 and subsequent prosecution for trespass, based upon his allegedly

unauthorized presence at defendant Hotel. As relief, his complaint seeks

recovery of $30 million from defendant City and $20 million as against

defendant Hotel.

Currently pending before the court in connection with the action are

two matters. The first is the latest in a series of discovery skirmishes that

have arisen in the action; the current dispute surrounds plaintiff’s failure to

provide an oath with respect to responses to interrogatories propounded

by defendant City, despite having been ordered by the court to do so. The

second involves summary judgment motions filed by the defendants, both

of whom maintain that based upon the record before the court no

reasonable factfinder could conclude that plaintiff’s constitutional rights

2


were violated by the defendants.

Certain recent events associated with this action provide clear

indication that the plaintiff, who has graduated and moved out of the area,

has become disinterested in pursuing the claims in this action. On the

date set by the court for oral argument in connection with the discovery

dispute, for example, plaintiff failed to appear. He later contacted my

chambers to advise that he no longer wishes to pursue his claims in this

action, and has followed that verbal statement of his intentions with a

letter in which he advises that he does not oppose the pending summary

judgment motions. Based upon these circumstances, and having

reviewed defendants’ motions for facial sufficiency and determined that

they are meritorious, I recommend that summary judgment be granted

and plaintiff’s claims be dismissed. Additionally, I recommend that the

plaintiff be ordered to pay defendants’ costs and attorney’s fees

associated with the most recent discovery-related motion.

I. BACKGROUND1

At the times relevant to his claims the plaintiff was a resident of

In light of the procedural posture of the case the following recitation is1

derived from the record now before the court, with all inferences drawn andambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2dCir. 2003).

3


Syracuse, New York. Amended Complaint (Dkt. No. 7) ¶ 1. The Genesee

Grande Hotel is a place of public accommodation located in Syracuse,

New York, offering hotel, dining, and bar services. See id. at ¶¶ 4-6.

Steptoe has never been an overnight guest at the hotel, although he has

eaten at the hotel’s restaurant at various times. Id. at ¶¶ 4-8; Defendant

Hotel’s Local Rule 7.1(a)(3) Statement (Dkt. No. 128-13) ¶ 28.2

Prior to September 22, 2009, when the events giving rise to

plaintiff’s claims took place, employees of the defendant Hotel had

occasionally observed Steptoe in their establishment during odd, late-

night hours. One such instance occurred at approximately 3:30 a.m. on a

morning when the plaintiff approached Kelly Whitney, a guest services

agent and the night-time auditor on duty at the time, seeking information

regarding services available at the Hotel. Plaintiff’s Exhibits (Dkt. No. 22)

Exh. 1. After a brief conversation, during which Ms. Whitney ascertained

that Steptoe was not a guest at the Hotel, plaintiff left. Id. Plaintiff

returned, however, approximately two weeks later at about 1:00 a.m.,

again asking about services despite not being a guest at the Hotel. Id. On

As will be seen, by failing to oppose defendants’ summary judgment2

motions plaintiff is deemed to have admitted the allegations set forth in their LocalRule 7.1(a)(3) Statements. See pp. 23 - 24, post.

4


yet another date plaintiff was observed by a different Hotel employee,

Joanna Ramsey, as he approached the front desk of the Hotel at

approximately 12:30 a.m., yet again inquiring about available services.

Plaintiff’s Exhibits (Dkt. No. 22) Exh. 1. On that occasion security was

called, and plaintiff was directed to leave the property. Id. Based upon

these incidents plaintiff was advised by both Hotel staff and security not to

enter the premises again. Plaintiff’s Exhibits (Dkt. No. 22) Exh. 1.

On the evening of September 22, 2009, plaintiff entered the Hotel

through a side entrance. Id. The door through which Steptoe gained

access to the facility leads to an outside dining patio that is enclosed by a

metal fence. Id. at Exh. 2; see also Plaintiff’s Exhibits (Dkt. No. 22) Exh.

13. After observing the plaintiff enter the Hotel and walk through the main

level by means of security cameras, Ms. Whitney, who was working on

that evening, notified Pam Otis, an off-duty Syracuse City Police Officer

working a private security detail for the Hotel, of Steptoe’s presence. 3

Plaintiff’s Exhibits (Dkt. No. 22) Exhs. 1, 2.

After entering the Hotel, plaintiff proceeded into the bar area where

The defendant Hotel employs off-duty Syracuse City Police officers to3

patrol its parking lots at night in order to protect its guests’ motor vehicles against theftand vandalism. Defendant Hotel’s Local Rule 7.1(a)(3) Statement (Dkt. No. 128-13) ¶27.

5


the bartender, Sherry MacCombie, was in the process of closing because

of the late hour and lack of customers in the premises. MacCombie Aff.

(Dkt. No. 53) ¶¶ 4-5. After plaintiff expressed interest in purchasing4

alcohol Ms. MacCombie requested identification; in response to that

directive, Steptoe produced a Massachusetts driver’s license. Id. at ¶¶ 5-

7; Plaintiff’s Exhibits (Dkt. No. 22) Exh. 2. At that point, Ms. Otis entered

the bar and, upon questioning, was informed that Steptoe desired to

purchase drinks. MacCombie Aff. (Dkt. No. 53) ¶ 7; Plaintiff’s Exhibits

(Dkt. No. 22) Exh. 2. Ms. Otis then advised the plaintiff that if he was

there to have a drink he was welcome to stay, but if not he was

trespassing and would have to leave. MacCombie Aff. (Dkt. No. 53) ¶ 8.

After Ms. Otis left the bar area, Steptoe requested a shot of whiskey

from bartender MacCombie. MacCombie Aff. (Dkt. No. 53) ¶ 9. When

informed that it was the Hotel’s policy not to sell shots of alcohol, as

evidenced by a sign posted above the cash register in the bar area,

An earlier affidavit signed by Sherry MacCombie was filed with the court4

in connection with the Hotel’s opposition to plaintiff’s motion. See Dkt. No. 44. Because that affidavit contained a typographical error, suggesting that it was signed onJune 17, 2008, rather than June 17, 2010, however, the affidavit was resubmitted,without substantive changes, after having again been signed and sworn to on August26, 2010. See Dkt. Nos. 49, 53.

6


plaintiff next inquired concerning the price of a beer; upon being advised

that it would cost him $4.50 to purchase a beer, Steptoe left without

ordering any drinks. Id.

Plaintiff left the Hotel, but returned a short time later at

approximately 11:45 p.m. on the same evening and approached the front

desk, complaining to Ms. Whitney regarding the incident. Plaintiff’s

Exhibits (Dkt. No. 22) Exhs. 1, 2. Ms. Otis was then summoned to the

lobby area; by the time she arrived plaintiff had already left the premises.

Id. at Exh. 2. Upon investigating the matter, Officer Otis learned from

Joanna Ramsey, another Hotel employee, that she too had seen and

spoken with Steptoe on a prior occasion concerning his presence on Hotel

property and that at that time plaintiff was informed by Hotel security

personnel to leave and not return to the premises.5

Officer Otis filed a report regarding the incident and lodged a

In addition to the encounters during the Fall of 2009, plaintiff also entered5

the Hotel at approximately midnight on one occasion in May of 2009, wanderingthrough the lobby and around the Hotel premises and eventually entering the a men’sroom. Defendant Hotel’s Local Rule 7.1(a)(3) Statement (Dkt. No. 128-13) ¶ 31; seealso Amended Complaint (Dkt. No. 7) ¶¶ 10-14. Because Steptoe was not a guest ofthe Hotel and the bar and restaurant were closed, a desk clerk called the SyracusePolice Department to report the matter. Defendant Hotel’s Local Rule 7.1(a)(3)Statement (Dkt. No. 128-13) ¶ 31. After Syracuse police officers responded plaintiffwas informed that since he was not a guest in the Hotel he was required to make apurchase in order to remain on the premises; plaintiff subsequently left the Hotelwithout making a purchase. Id. at ¶ 32.

7


violation information with the Syracuse City Court on September 23, 2009

accusing plaintiff of trespass, in violation of New York Penal Law §

140.05. Plaintiff’s Exhibits (Dkt. No. 22) Exhs. 2, 3. A warrant for

Steptoe’s arrest was thereafter sought and obtained. Amended Complaint

(Dkt. No. 7) ¶¶ 55-56. The plaintiff was subsequently arrested at 9:00

a.m. on October 2, 2009 by Syracuse Police Officer Nolan, and appeared

in court concerning the matter an hour later, at which time he was

released on his own recognizance. Plaintiff’s Exhibits (Dkt. No. 22) Exh.6

6; see also Amended Complaint (Dkt. No. 7) ¶ 89. The charge against the

plaintiff was ultimately dismissed by Syracuse City Court Judge Kate

Rosenthal on December 15, 2009. Plaintiff’s Exhibits (Dkt. No. 22) Exh. 8.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on October 8, 2009 and, at the

direction of the court, filed an amended complaint on December 21, 2009.

Dkt. Nos. 1, 6, 7. Plaintiff’s complaint, as amended, names the defendant

The parties’ recitations of the chronology of events surrounding plaintiff’s6

arrest and ensuing court appearance are conflicting. Plaintiff maintains that he wasdetained for nearly thirty hours before being brought before a judge. AmendedComplaint (Dkt. No. 7) ¶¶ 78, 89. Plaintiff’s version, however, is seeminglycontradicted by the arrest report filed by Police Officer Nolan. See Plaintiff’s Exhibits(Dkt. No. 22) Exh. 6. This potential discrepancy is not significant for purposes ofresolving defendants’ summary judgment motions.

8


City and defendant Hotel as the sole defendants and asserts nine

separate causes of action, alleging 1) negligence on the part of defendant

City; 2) violation of the plaintiff’s Fourth Amendment rights by defendant

City; 3) violation of Fourth Amendment rights by defendant Hotel; 4) denial

of equal protection by defendant City; 5) deprivation of due process by

defendant City; 6) denial of equal protection by defendant Hotel; 7)

deprivation of due process by defendant Hotel; 8) intentional infliction of

emotional distress by defendant Hotel; and 9) intentional infliction of

emotional distress by defendant City.

A Uniform Pretrial Scheduling Order (“UPSO”) was issued by the

court on May 21, 2010, establishing deadlines for the completion of

certain tasks leading up to the filing of dispositive motions by January 31,

2011. Dkt. No. 21. The dates set forth in that UPSO were subsequently

modified, resulting in a new discovery deadline of May 31, 2011 and a

revised motion filing deadline of July 15, 2011. See Text Scheduling

Order dated 4/14/11.

On July 30, 2010, defendant City served a set of interrogatories

upon the plaintiff pursuant to Rule 33 of the Federal Rules of Civil

Procedure. Plaintiff responded to those interrogatories on or about

9


August 30, 2010; those responses, however, though signed by the

plaintiff, were not sworn to. See Doyle Aff. (Dkt. No. 71-1) Exh. E.

Defendant City moved on January 14, 2011 for various discovery-

related relief including, inter alia, an order compelling plaintiff to answer

the City’s interrogatories under oath, Dkt. No. 71. As a result of that

motion a hearing was conducted on February 14, 2011. During the

hearing I advised the plaintiff that the defendant City was entitled to an

oath with regard to his interrogatory responses; unfortunately, however,

through inadvertence the order resulting from that hearing did not include

a specific directive to that effect. See Dkt. No. 81.

The matter was the subject of a second motion to compel, filed by

defendant City on March 28, 2011. Dkt. No. 91. A hearing was

conducted in connection with that motion on April 13, 2011. During that

hearing the requirement under Rule 33 that interrogatory responses be

given under oath was prominently discussed and reiterated to the plaintiff.

That motion resulted in the issuance of an order on April 14, 2011 in which

I directed, among other things, that the plaintiff provide a proper oath

swearing to the contents of his interrogatory responses within fourteen

days of the date of the order. Dkt. No. 95.

10


On June 24, 2011, defendant City moved seeking various sanctions

including dismissal of the action, a finding of contempt, a preclusion order,

and costs and attorneys’ fees, growing out of plaintiff’s failure to comply

with the court’s April 14, 2011 order. Dkt. No. 117. That motion was

followed by the filing by both defendants on June 15, 2011 of motions for

summary judgment seeking dismissal of all of plaintiff’s claims against

them as a matter of law. Dkt. Nos. 126, 128.

The pending discovery dispute was originally scheduled for a

hearing to be held on July 27, 2011. To accommodate a conflict on the

part of the plaintiff, however, the hearing was rescheduled to August 3,

2011. While defendants’ attorneys were present on that adjourned date,

plaintiff failed to appear at that hearing. In light of plaintiff’s conduct, I

advised the parties of my intention to recommend that his complaint be

dismissed under Rule 37 of the Federal Rules of Civil Procedure, and for

failure to prosecute pursuant to Rule 41(b), and to award defendants

costs and attorney’s fees.

Within an hour after the time of the scheduled hearing date plaintiff

telephoned chambers and advised my judicial assistant that in light of his

present circumstances he no longer wishes to pursue his claims in the

11


action. Plaintiff also indicated that he has moved, but was not willing to

provide the court with his new address by telephone. Plaintiff was

informed that because of the pendency of summary judgment motions by

both defendants, he could not simply unilaterally withdraw his claims, but

would instead either have to advise the court that he does not oppose the

entry of summary judgment, or enter into a stipulation with the defendants

for dismissal of his claims pursuant to Rule 41(a) of the Federal Rules of

Civil Procedure. As was previously indicated, plaintiff has since filed a

letter with the court advising of a change in his circumstances, making

pursuit of the action “overly burdensome and non-feasible” for him, and

stating that he does not challenge the defendants’ motions for summary

judgment nor does he intend to pursue the claims in the action, further

representing that he “abandoned[s] all claims asserted in this action.” Dkt.

No. 131. Defendants have since responded by requesting that if

judgment is entered the matter remain open for purposes of enforcing a

previous sanctions award against the plaintiff. Dkt. Nos. 132, 134.

Defendants’ pending summary judgment motion has been referred

to me for the issuance of a report and recommendation, pursuant to 28

U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule

12


72.3(c). See also Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Defendants City’s Motion to Compel Discovery

The rule governing interrogatories provides, in relevant part, that

“each interrogatory must, to the extent it is not objected to, be answered

separately and fully in writing under oath. Fed. R. Civ. P. 33(b)(3). The

rule, however, does not prescribe any particular form of verification.

Zanowic v. Reno, No. 97 Civ. 5292, 2000 WL 1376251, at *5 (S.D.N.Y.

Sept. 25, 2000). The courts that have addressed the issue of the form

that an interrogatory oath must take appear to be in agreement that the

oath requirement may be satisfied either by having the statement affirming

the responses sworn to before a notary public or by providing a

declaration pursuant to 28 U.S.C. § 1746. Id. If the latter course is7

That section provides that 7

[w]herever, under any law of the United States or under anyrule, regulation, order, or requirement made pursuant tolaw, any matter is required or permitted to be supported,evidenced, established, or proved by the sworn declaration,verification, certificate, statement, oath, or affidavit, inwriting of the person making the same (other than adeposition, or an oath of office, or an oath required to betaken before a specified official other than a notary public),such matter may, with like force and effect, be supported,evidenced, established, or proved by the unsworndeclaration, certificate, verification, or statement, in writingof such person which is subscribed by him, as true under

13


selected, an unverified statement may suffice provided that it specifically

states that the document is given under penalty of perjury and is true and

correct. 28 U.S.C. § 1746; McLaughlin v. Cohen, 686 F. Supp. 454, 457

(S.D.N.Y. 1988) (citations omitted).

The oath requirement applicable to interrogatories has legal

significance. Courts have routinely refused to consider interrogatories that

do not comport with that mandate. See, e.g., Trueman v. New York State

Canal Corp., No. 09-CV-049, 2010 WL 681341, at *5 (N.D.N.Y. Feb. 24,

2010) (Treece, M.J.); Miroglio S.P.A. v. Conway Stores, Inc., No. 05-CIV-

00121, 2008 WL 4600984, at *6 (S.D.N.Y. Oct. 15, 2008) (signed

interrogatory responses inadmissable at trial because not sworn to under

oath); Cabales v. United States, 51 F.R.D. 498, 499 (S.D.N.Y. 1970) aff’d

447 F.2d 1358 (2d Cir. 1971) (finding that an unsigned, unverified writing

purporting to be plaintiff’s answer did not qualify as answer under Rule

33).

penalty of perjury, and dated, in substantially the followingform: . . . “I declare (or certify, verify, or state) under penaltyof perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).(Signature)”.

28 U.S.C. § 1746.

14


In this instance, plaintiff’s initial interrogatory responses to defendant

City were not given under oath. It is true that following the hearing on

February 14, 2011 plaintiff attempted to provide proper responses,

submitting a page dated April 4, 2011 stating “I, LeChristian Steptoe,

plaintiff, in Steptoe v. The City of Syracuse and the Genesee Grande

Hotel, hereby swear, that all factual statements which I have made in the

interrogatory responses, which I have served upon the defendant City, on

or about July 31st, 2010, are true and accurate, to the best of my

knowledge.” See Plaintiff’s Response to Sanction Motion (Dkt. No. 123)

Exh. 1. While an improvement over the earlier responses, which were

merely signed, that statement does not fully satisfy the requirements of 28

U.S.C. § 1746 in that it does not specifically provide that the statement is

being given under penalty of perjury. See McLauglin, 686 F. Supp. at

457.

Based upon the foregoing chronology, it has been established to the

court’s satisfaction that despite being required under the terms of the

court’s April 14, 2011 order to do so, plaintiff has failed to comply with

Rule 33 and provide a proper oath to the interrogatory responses served

upon defendant City. I must therefore next determine what sanction from

15


among the array authorized under Federal Rule of Civil Procedure 37(b),

should most appropriately result from plaintiff’s conduct.

Rule 37(b) provides that the court may impose sanctions on a party

who fails “to obey an order to provide or permit discovery.” Fed.R.Civ.P.

Rule 37(b). This rule provides a wide range of discretionary sanctions,

including striking a pleading, staying further proceedings, rendering a

default judgment, or treating a failure to obey as contempt of court.

Fed.R.Civ.P. 37(b)(2). Quite obviously, under Rule 37 dismissal of a

recalcitrant plaintiff’s claims is the severest of the available sanctions, and

should be imposed only in extreme situations. Cross v. Vill. of

Cooperstown, No. 04-CV-501, 2007 WL 3254269, at *3 (N.D.N.Y. Nov. 2,

2007) (Scullin, S.J.). Moreover, when considering dismissal of claims

brought by a pro se plaintiff, the court must ensure that 1) the plaintiff’s

non-compliance rises to the level of “willfulness, bad faith, or his own

fault”; 2) less drastic alternatives to dismissal are not available or are not

likely to be effective; and 3) the party whose case is in danger of dismissal

has been apprised of that possibility. Id. (citing Nat’l Hockey League v.

Metropolitan Hockey Club, Inc., 427 U.S 639, 640, 96 S. Ct. 2778, 2779

(1976) and Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d

16


Cir. 1990), cert. denied, 499 U.S. 943, 111 S. Ct. 1404 (1991)). Instead of

or in addition to the sanctions available under Rule 37(b), the court must

order the disobedient party to pay reasonable expenses, including

attorney’s fees, caused by the failure, unless the failure was substantially

justified or other circumstances make an award of expenses unjust.

Fed.R.Civ.P. 37(b)(2)(B); Cower v. Albany Law School of Union Univ., No.

05-CV-924, 2007 WL 148758, at *5 (N.D.N.Y. Jan. 11 2007) (Homer,

M.J.) (“The determination whether to impose sanctions under Rule

37(b)(2) is discretionary.... The determination to award costs and

attorneys’ fees, however, is mandatory with two exceptions”).

In addition to Rule 37, the court has at its disposal both inherent

power, exercisable sua sponte, see, e.g., Hall v. Flynn, 829 F. Supp.

1401, 1403 (N.D.N.Y. 1993), see also Lindsey v. Loughlin, 616 F. Supp.

449, 453 (E.D.N.Y. 1985) (citing Link v. Wabash R.R. County Independent

Sch. Dist., 370 U.S. 626, 630-31, 82 S. Ct. 1386, 1389 (1962) (“The

authority of a court to dismiss sua sponte for lack of prosecution is general

and considered an ‘inherent power’, governed not by rule or statute or by

the control necessary vested in courts to manage their own affairs so as

to achieve the orderly and expeditious dispositive of cases.”)), and specific

17


authority conferred under Rule 41(b) of the Federal Rules of Civil

Procedure, to dismiss a plaintiff’s complaint for failure to comply with court

expectations and orders. Link, 370 U.S. at 629-30, 82 S. Ct. at 1388.

This power to dismiss may be exercised when necessary to achieve

orderly and expeditious disposition of cases. See Freeman v. Lundrigen,

No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996)

(Pooler, J.) (citing Rodriguez v. Walsh, No. 92-CV-3398, 1994 WL 8688,

at *1 (S.D.N.Y., Jan. 14, 1994) (other citations omitted)).

The decision to dismiss under Rule 41(b) for failure to comply with a

court order and/or to prosecute is informed by five factors, including (1)

the duration of the plaintiff's failure to comply with the court order, (2)

whether plaintiff was on notice that failure to comply would result in

dismissal, (3) whether the defendants are likely to be prejudiced by further

delay in the proceedings, (4) a balancing of the court's interest in

managing its docket with the plaintiff's interest in receiving a fair chance to

be heard, and (5) whether the judge has adequately considered a

sanction less drastic than dismissal. See Shannon v. Gen. Elect. Co., 186

F.3d 186, 193 (2d Cir. 1999) (failure to prosecute action) (citation and

internal quotation marks omitted); Lucas v. Miles, 84 F.3d 532, 535 (2d

18


Cir. 1996) (failure to comply with order of court) (citations omitted). I have

carefully evaluated these five factors and find that they weigh decidedly in

favor of dismissal – a result that seems to square with the plaintiff’s

present intentions concerning the action.

Although proceeding pro se, plaintiff is not unsophisticated, having

recently graduated from law school. The requirement at issue – to

accompany interrogatory responses – was explained to the plaintiff by the

court twice, in detail, to no avail. Despite this and the fact that plaintiff

was previously sanctioned for bringing a meritless motion, plaintiff has

nonetheless chosen to disregard the court’s clear directive. These

circumstances, coupled with his failure to appear as directed to respond in

person to defendant City’s motion, represent a flagrant affront to the court

and its powers and provide ample basis for an award of appropriate

sanctions, which could include a finding of contempt as well as dismissal

of plaintiff’s complaint. Despite the fact that dismissal for failure to comply

with court directives would be amply justified in this case, in light of

plaintiff’s announced intention not to pursue his claims, I recommend that

the court review the defendants’ pending summary judgment motions and,

if appropriate, enter a merits-based determination in defendants’ favor

19


rather than dismissing plaintiff’s complaint for failure to comply with the

court’s prior orders, particularly in light of the preference that matters be

resolved on the merits rather than the basis of a technical deficiency.

See, e.g., Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95, 96 (2d Cir. 1993);

Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). I further recommend,

however, that defendant City be awarded costs and attorney’s fees

incurred as a result of having to file and argue the motion to compel

discovery, and additionally that defendant Hotel be permitted to recover

costs and attorney’s fees as a result of having to appear in connection

with defendant City’s motion. 8

B. Standard of Review

Summary judgment motions are governed by Rule 56 of the Federal

Rules of Civil Procedure. Under that provision, summary judgment is

warranted when “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of

In the event that this recommendation is adopted, the court will then8

afford counsel for both defendants an adequate opportunity to file submissionsquantifying the costs and attorney’s fees resulting from the instant motion, and plaintiffwill thereafter be permitted to respond to the requests.

20


law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of

Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.

2004). A fact is “material”, for purposes of this inquiry, if it “might affect

the outcome of the suit under the governing law.” Anderson, 477 U.S. at

248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d

549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in

dispute “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S. Ct. at

2510.

A party moving for summary judgment bears an initial burden of

demonstrating that there is no genuine dispute of material fact to be

decided with respect to any essential element of the claim in issue; the

failure to meet this burden warrants denial of the motion. Anderson, 477

U.S. at 250 n.4, 106 S. Ct. at 2511 n.4; Security Ins., 391 F.3d at 83. In

the event this initial burden is met the opposing party must show, through

affidavits or otherwise, that there is a material issue of fact for trial. Fed.

R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson,

21


477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled

to special latitude when defending against summary judgment motions,

they must establish more than mere “metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith

Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court

to consider whether pro se plaintiff understood nature of summary

judgment process).

When deciding a summary judgment motion, a court must resolve

any ambiguities, and draw all inferences from the facts, in a light most

favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v.

Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). Summary judgment is

warranted only in the event of a finding that no reasonable trier of fact

could rule in favor of the non-moving party. See Building Trades

Employers’ Educ. Ass’n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002)

(citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511

(summary judgment is appropriate only when “there can be but one

reasonable conclusion as to the verdict”).

C. Plaintiff’s Failure to Oppose Defendants’ Motions

22


In response to defendants’ pending summary judgment motions the

plaintiff has filed no opposition papers. Instead, on or about August 5,

2011, after the filing of those motions, Steptoe submitted a handwritten

letter to Senior District Judge Neal P. McCurn advising the court “of [his]

intention to abandon all claims against the defendants in this case”, and

further stating that he would not challenge defendant Hotel’s motion for

summary judgment or pursue this action any further. Dkt. No. 131. The

issue to be addressed therefore is the illegal significance, if any, of this

communication, and specifically whether it implies consent to the entry of

summary judgment.

Under this court’s local rules a party’s failure to respond to a

properly filed motion is generally regarded as the functional equivalent of

consent to the granting of the motion. N.D.N.Y.L.R. 7.1(b)(3). Before

such an unopposed motion may be granted, however, the court must first

make a threshold finding that the moving party has met its burden of

facially demonstrating entitlement to the relief requested. Id.; see McCall

v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000). In making that

assessment it should be noted that the court must deem any facts set

forth in defendants’ Local Rule 7.1(a)(3) statements of material facts as

23


having been deemed admitted by the plaintiff in view of his failure to

properly respond to those statements. See N.D.N.Y.L.R. 7.1(a)(3); see

Elgamil v. Syracuse Univ. No. 99-CV-611, 2000 WL 1264122, at *1 (Aug.

22, 2000) (McCurn, S.J.) (listing cases); see also Monahan v. New York

City Dep’t of Corr., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district

courts’ discretion to adopt local rules like 7.1(a)(3)).

D. State Action

In its motion defendant Hotel argues, inter alia, that even if plaintiff’s

constitutional rights were violated, it does not bear potential liability for

those violations since its conduct toward the plaintiff does not amount to

state action, as required to establish a cognizable claim in this action.

Section 1983 provides a right of action against a party “who, under

color of any statute, ordinance, regulation, custom, or usage, of any State.

. . subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any rights,

or immunities secured by the Constitution and Laws . . ..” 42 U.S.C. §

1983. One of the essential elements of a claim under that section is that

the conduct complained of was committed by a person acting under color

of state law. Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994); Claudio v.

24


Sawyer, 675 F. Supp. 2d 403, 407-408 (S.D.N.Y. 2009), aff’d, 409 Fed.

App’x 464 (2d Cir. 2011).

To establish liability under section 1983, a plaintiff must prove

unlawful conduct which is “fairly attributable to the state.” Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744 (1982); Dyno v.

Binghamton, No. 3:09-CV-313 (TJM/DEP), 2009 WL 1663990, at *8

(N.D.N.Y. June 15, 2009) (McAvoy, S.D.J.). Actions of a purely private

entity such as the defendant Hotel can be deemed fairly attributable to the

state when 1) the entity acts pursuant to the “coercive power” of the state

or is “controlled” by the state (“the compulsion test”); 2) the state provides

“significant encouragement” to the entity, the entity is a “willful participant

in joint activity with the [s]tate”, or the entity’s functions are “entwined” with

state policies (“the joint action test” or “close nexus test”); or 3) the entity

“has been delegated a public function by the [s]tate”, (“the public function

test”). Sybalski v. Independent Group Home Living Program, Inc., 546

F.3d 255, 257 (2d Cir. 2008) (citing and quoting Brentwood Acad. v. Tenn.

Secondary Sch. Ath. Ass’n, 531 U.S. 288, 296, 121 S. Ct. 924 (2001))

(citations and internal quotation marks omitted); see also Hollander v.

Copacabana Nightclub, 624 F.3d 30, 34 (2d Cir. 2010); Fabrikant v.

25


French, No. 1:03-CV-1289 (DNH-DRH), 2010 WL 2774043, at *5

(N.D.N.Y. July 13, 2010) (Hurd, D.J.).

In this case, the plaintiff appears to urge application of the “joint

action test”, asserting that the defendant Hotel and a state official, off-duty

police officer Otis, shared a common unlawful goal, agreeing to act

together jointly to deprive him of rights guaranteed by federal law. The

record in this case, however, does not contain evidence from which a

reasonable jury could conclude that the Hotel and a state official shared a

common, unlawful goal and agreed to act together jointly to deprive

plaintiff of his civil rights. The record discloses that at the relevant times

Pam Otis, the state official who plaintiff apparently claims was acting

together with defendant Hotel to deprive him of his civil rights, was acting

not as a Syracuse City Police Officer but rather as a private security guard

working for the Hotel. In this instance, the actions of defendant Hotel9

toward the plaintiff were limited and do not give rise to a finding of joint

action. The only action taken by Hotel employees in relation to plaintiff’s

Throughout this litigation plaintiff has vociferously argued the9

unlawfulness of permitting an off-duty police officer working in a security capacity at anestablishment at which alcoholic beverages are sold. New York law specificallyprovides that an off-duty police officer may engage in private employment outside ofregular working hours not exceeding twenty hours per week, provided that there is nointerference with his or regular duties. See N.Y. General Municipal Law § 208-d.

26


arrest and prosecution was to request that he be prosecuted for trespass,

which, standing alone, is insufficient to support a finding of joint action

between representatives of the Hotel, as a private entity, and public

officials to support a finding of liability under section 1983. Cf. Parker v.10

Grand Hyatt Hotel, 124 F. Supp. 2d 79, 88 (D.D.C. 2000); Bang v. Utopia

Restaurant, 923 F. Supp. 46, 49 (S.D.N.Y. 1996).

In sum, even when construed on a light most favorable to the

plaintiff, the record now before the court fails to support a finding of state

action on the part of defendant Hotel, thereby warranting dismissal of all

claims arising under section 1983 against that entity.

E. Fourth Amendment Violation

Plaintiff’s second and third causes of action allege Fourth

Amendment violations against the City and the Hotel, respectively.

Plaintiff’s Fourth Amendment claim appears to stem from the alleged

It is worth noting that courts have frequently been called upon to10

determine whether off-duty police officers can properly be regarded as state actors forpurposes of section 1983. See, e.g., Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.1994); Claudio v. Sawyer, 675 F. Supp. 2d 403, 408-409 (S.D.N.Y. Dec. 23, 2009);Dean v. City of Buffalo, 579 F. Supp. 2d 391, 404-405 (W.D.N.Y.2008). Even if OfficerOtis could be regarded as a state actor in this case, however, she is not a defendant inthis case. As a result, her actions can not form the basis for a finding of “joint action”by the defendant Hotel.

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seizure by Pam Otis from bartender Sherry MacCombie of plaintiff’s

driver’s licence, produced in response to MacCombie’s request for

identification prior to serving plaintiff alcohol. Defendants maintain that

this cause of action is deficient as a matter of law.

The Fourth Amendment guarantees the right to be free from

unreasonable searches and seizures. U.S. Const. Amend. IV. For Fourth

Amendment purposes, a seizure represents a “meaningful interference

with an individual’s possesory interests” and property. United States v.

Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984); see also

United States v. Place, 462 U.S. 696, 707-08, 103 S. Ct. 2637, 2645

(1983) (“[t]he manner in which the seizure . . . [was] conducted is, of

course, . . . a vital part of the inquiry . . . .”) (quoting Terry v. Ohio, 392

U.S. 1, 28, 88 S. Ct. 1868, 1993 (1968)). The touchstone of a Fourth

Amendment violation arising from a seizure is the forcible separation of

property from an owner. Soldal v. Cook Cnty. Illinois, 506 U. S. 56, 61,

113 S. Ct. 538 (1992) (citing Jacobsen); see also Hale v. Henkel, 201

U.S. 43, 76-77, 26 S. Ct. 370, 380 (1906). “The unlawfulness of an

interference with an individual’s possessory interest in property depends

on the reasonableness of the seizure.” Sheppard v. Beerman, 18 F.3d

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147, 152 (2d Cir. 1994) (citing Soldal, 506 U.S. at 71, 113 S. Ct. at 549).

Whether a seizure is unreasonable within the meaning of the Fourth

Amendment represents a fact-intensive inquiry. Cooper v. State of

California, 386 U.S. 58, 59, 87 S. Ct. 788, 790 (1967); Preston v. United

States, 376 U.S. 364, 367, 84 S. Ct. 881, 883 (1964).

The facts currently before the court reveal that plaintiff produced his

identification card in response to request from bartender MacCombie as a

prelude to selling him alcohol. Such a request and production, even if by

a law enforcement officer, is entirely lawful as a precondition to the sale of

alcohol in order to confirm that the individual is eligible to purchase

alcohol. See N.Y. ALCO. BEV. CONT. LAW § 65 (making it unlawful to sell

alcoholic beverages to any person under the age of twenty-one and

authorizing the affirmative defense to such violation that such person has

produced photographic identification); see also Brown v. City of Oneonta,

New York, 195 F.2d 111, 121 (2d Cir. 1999) (“[A] seizure does not occur

simply because a police officer approaches an individual and asks a few

questions.”) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct.

2382, 2386 (1991)), cert. denied, 534 816, 122 S. Ct. 44 (2001). In this

instance, when Pam Otis asked to examine the card it was provided to her

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briefly by bartender MacCombie. The mere act of looking at a document

or property does not constitute an unlawful seizure since there is no

meaningful interference in such a case with the individual’s possesory

interest. Arizona v. Hicks, 480 U.S. 321, 324, 107 S. Ct. 1149, 1152-53

(1987); see also Robinson v. Town of Colonie, 878 F. Supp. 387

(N.D.N.Y. 1995). Moreover, at no time did plaintiff object when his

identification was reviewed by off-duty police officer Otis. Based upon

these facts no reasonable jury could conclude that plaintiff’s Fourth

Amendment rights were violated. See Robinson, 878 F. Supp. at 401-

402. I therefore recommend that plaintiff’s Fourth Amendment claims

against both defendants be dismissed.

F. Procedural Due Process

Plaintiff’s fifth cause of action accuses the defendant City of

depriving him of procedural due process. That cause of action appears to

contain multiple components, alleging that the plaintiff was 1) deprived of

his identification card without due process 2) was deprived of his liberty

during the period of off-duty police officer Pam Otis’ questioning; 3) was

denied due process in connection with this arrest and interrogation; and 4)

was denied procedural due process as a result of a policy at the jail facility

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in which he was held against inmates making telephone calls outside of

the 315 area code.

To successfully state a claim under 42 U.S.C. § 1983 for the denial

of procedural due process a plaintiff must show that he or she 1)

possessed an actual liberty or property interest and 2) was deprived of

that interest without being afforded constitutionally-sufficient process.

Oneida Indian Nation of New York v. Madison Cnty., 2011 WL 4978126,

at *12, __ F.3d __ (2d Cir. Oct. 20, 2011) (citing Swarthout v. Cooke, –

U.S. –, 131 S. Ct. 859, 861 (2011); Adams v. Suozzi, 517 F. 3d 124, 127

(2d Cir. 2008). When a due process claim is predicated upon the

deprivation of a property interest that deprivation must be more than de

minimis. Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414,

(1974); see also Groves v. New York, No. 9:09-CV-0412, 2010 WL

1257858, at * 9 (N.D.N.Y. Mar. 1, 2010) (Peebles, M.J.) (citing Bell v.

Wolfish, 441 U.S. 520, 539 n.21, 99 S. Ct. 1861, 1874 n.21 (1979)

(quoting Ingraham)), report and recommendation adopted, 2010 WL

1257942 (N.D.N.Y. Mar. 26, 2010).

Addressing first the seizure of plaintiff’s identification, it is clear that

plaintiff’s drivers license was not seized by police officer Otis by the

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plaintiff; instead, bartender MacCombie asked to see identification, and

plaintiff gave it to her. The bartender handed the license to police officer

Otis, who only briefly examined it and returned it to the bartender, who in

turn gave it back to the plaintiff. Defendant Hotel’s Local Rule 7.1(a)(3)

Statement (Dkt. No. No. 128-13) 40-42. That brief encounter was nothing

more than de minimis by any standard, and as such constitutionally

insufficient to support a claim for denial of due process. See Redmond v.

Garvey, No. 91 Civ. 6777, 1998 WL 600992, at * 3 (S.D.N.Y. Sep. 10,

1998).

Turning to the questioning of the plaintiff by Pam Otis, even

assuming that her actions constituted those of a state actor, there is no

evidence in the record that would support a due process deprivation.

Plaintiff does not allege, and the record does not disclose, that his liberty

was restrained in any significant way. Indeed, he does not even allege

that he was involuntarily detained by Ms. Otis while being questioned. In

any event, the brief encounter occurring in the bar of the Genesee Grande

Hotel was not of sufficient duration or character to support a finding of a

liberty interest deprivation triggering the procedural due process

requirements of the Fourteenth Amendment.

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Plaintiff’s due process claim surrounding his arrest and interrogation

is similarly deficient. Plaintiff’s detention and interrogation stems from a

lawfully filed criminal complaint and resulting arrest warrants. These facts

do not support a claim of due process deprivation against the complaining

witnesses. See Fabrikant, 722 F. Supp. 2d at 256; see also Guadagni v.

New York City Transit Auth., No. 08-CV-3163, 2009 WL 1910953, at *9

(E.D.N.Y. Jun. 30, 2009) (noting that allegations of false arrest and

malicious prosecution state a claim only under the Fourth Amendment,

and not under the Due Process Clause of the Fourteenth Amendment)

(quoting Ambrose v. City of New York, No. 02-CV-10200, 2009 WL

890106, at*16 n.9 (S.D.N.Y. Mar. 31, 2009)), aff’d, 387 Fed. App’x 124 (2d

Cir. 2010).

The fourth prong of plaintiff’s due process claim alleges that he was

unable to make telephone calls outside of the (315) area code while held

in a local jail facility. There is nothing in the record to attribute that act to

either of the defendants in this action.11

The court takes judicial notice that the Onondaga County Justice Center,11

in which plaintiff was presumably held in December of 2009, is operated by OnondagaCounty, and not by defendant City.

Similarly the record establishes that plaintiff was arrested and charged bytrespass by Onondaga County personnel. Defendant City therefore bears no

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Accordingly, I recommend dismissal of plaintiff’s procedural due

process claims against both defendants.

G. Equal Protection

In his fourth and sixth causes of action plaintiff alleges deprivation of

equal protection against the defendant City and defendant Hotel,

respectively. The basis for that claim appears to be that the parties were

engaged in racial profiling and treated him differently than they would have

a non-minority frequenting at the Hotel because he is African-American.

The Equal Protection Clause directs state actors to treat similarly

situated people alike. See City of Cleburne, Texas v. Cleburne Living

Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254 (1985). To prove a

violation of the Equal Protection Clause, a plaintiff must demonstrate that

he or she was treated differently than others similarly situated as a result

of intentional or purposeful discrimination directed at an identifiable or

suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d

Cir.1995) (citing, inter alia, McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.

responsibility to any claim of due process denial arising from the arrest andprosecution. See Defendant City’s Local Rule 7.1(a)(3) Statement (Dkt. No. 126-1) ¶7.

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Ct. 1756, 1767 (1987)).

In this instance, the record fails to contain evidence from which a

reasonable jury could conclude that plaintiff was treated differently than

other non-minority individuals as a result of his race. To support an equal

protection claim a plaintiff must produce evidence establishing that

discriminatory racial intent was the most likely motivation for the action in

question, or that the defendants’ alternative explanation for its action is

impossible. Robinson, 878 F. Supp. at 402 (citing Prompt Courier Serv.,

Inc. v. Koch, No. 89 Civ. 3053, 1990 WL 100904, at *8 (S.D.N.Y. Jul. 12,

1990)) (other citation omitted). Here, there is no evidence showing that

plaintiff was confronted and later prosecuted for trespass solely as a result

of his race. See Brown, 195 F.3d at 120-21. Instead, the record before

the court shows that MacCombie asked plaintiff for identification after he

indicated that he would like to buy a drink; after producing his

identification, plaintiff left without purchasing anything. Furthermore, the

evidence shows that plaintiff’s arrest was initiated by Otis only after

plaintiff returned to the Hotel at 11:45 p.m., complaining to an employee at

the front desk about the incident that had occurred earlier in the bar, and

police officer Otis’ investigation revealed that on several prior occasions

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plaintiff had been asked not to return to the premises unless he was a

guest or desired to make a purchase. Thus, it seems clear that

defendant’s actions were directed at plaintiff because of his conduct,

including odd behavior exhibited in the past, and were in no way motived

by a discriminatory intent.

Because the record is devoid of any evidence that plaintiff was

subjected to discrimination based upon his race, I recommend dismissal

of plaintiff’s equal protection causes of action.

H. Intentional Infliction of Emotional Distress

Plaintiff’s complaint also contains pendent state law claims for

intentional infliction of emotional distress (“IIED”) against both defendants.

In their motions, defendants request dismissal of those claims.12

The law in New York concerning claims for intentional infliction of

emotional distress (“IIED”) is well-settled; “in a cause of action for

intentional infliction of emotional distress, a plaintiff must plead and prove

four elements; 1) extreme and outrageous conduct; 2) the intentional or

reckless nature of such conduct; 3) a causal relationship between the

In its memorandum, defendant City does not directly address this cause12

of action. See Defendant City’s Memorandum (Dkt. No. 126-8). It is clear, however,that the City seeks dismissal of plaintiff’s complaint in its entirety and thereforeimplicitly challenges this cause of action.

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conduct and the resulting injury; and 4) severe emotional distress.”

Carlson v. Geneva City School Dist., 679 F. Supp. 2d 355, 372 (W.D.N.Y.

2010) (quoting Mitchell v. Giambruno, 35 A.D.3d 1040, 1041, 826

N.Y.S.2d 788, 789 (3rd Dep’t 2006) (citations omitted)) (internal

quotations omitted). The requirements of this standard are exceedingly

rigorous, and “[l]iability has been found only where the conduct has been

so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Murphy v. American Home Prod.

Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232 (1983) (citing Restatement

(Second) of Torts § 46, cmt. d). Consequently, the governing standard is

extremely demanding and difficult to satisfy, resulting in strict application

of these elements by New York courts. See Gay v. Carlson, 60 F.3d 83,

90 (2d Cir. 1995).

As a judge of the Southern District observed in Lydeatte v. Bronx

Overall Economic Development Corp., in addressing a motion to dismiss

an IIED claim in an employment discrimination action,

[i]t is particularly difficult to withstand a motion to dismissclaims for intentional infliction of emotional distress in theemployment law context. New York Courts are reluctant toallow these claims in employment discrimination cases. The

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courts are wary of allowing plaintiffs to recharacterize claimsfor wrongful or abusive discharge, which are not recognizedunder New York law, as claims for intentional infliction ofemotional distress. . .. As a result, New York courts routinelydismiss claims for intentional infliction of emotional distress inthe employment context, except where such claims wereaccompanied by allegations of sex discrimination and, moresignificantly, battery [,and] . . . the New York Court of Appealshas rarely allowed a plaintiff to sustain a claim for intentionalinfliction of emotional distress in the employment law context.

Lydeatte v. Bronx Overall Economic Dev. Corp., No. 00CIV5433, 2001

WL 180055, at *1 (S.D.N.Y. Feb. 22, 2001) (internal quotations and

citations omitted); see also James v. DeGrandis, 138 F. Supp. 2d 402,

421 (W.D.N.Y. 2001), (“[e]ven a false charge of sexual harassment does

not rise to the level of outrage required to recover on an intentional

infliction of emotional distress claim under New York law.”); La Duke v.

Lyons, 250 A.D.2d 969, 973, 673 N.Y.S.2d 240, 244 (3d Dep’t1998)

(“even assuming the truth of the allegation that the employees

intentionally relayed false information to the hospital, the conduct was not

sufficiently outrageous to state a cause of action for intentional infliction of

emotional distress.”).

The record in this case fails to disclose conduct that could be

determined by a reasonable factfinder to meet the strict standard for

providing an IIED claim. Accordingly, I recommend that plaintiff’s IIED

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causes of action be dismissed.

I. Negligence

Plaintiff’s remaining cause of action sets forth a pendent state law

claim of negligence. The gravamen of that cause of action is that the City

was negligent in failing to enforce its own policies regarding secondary

employment as well as restrictions under the New York Alcohol Beverage

and Control Law related to such work. Arguing that plaintiff is mistaken in

his assertion regarding secondary employment by police officers,

defendant City seeks dismissal of this cause of action.

“In every federal case, the party bringing the suit must establish

standing to prosecute the action.” Elk Grove Unified School Dist. v.

Newdow, 542 U.S. 1, 124 S. Ct. 2301 (2004). “In essence the question of

standing is whether the litigant is entitled to have the court decide the

merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S.

490, 498, 95 S. Ct. 2197 (1975). The standing requirement is born partly

of “ ‘an idea, which is more than an intuition but less than a rigorous and

explicit theory, about the constitutional and prudential limits to the powers

of an unelected, unrepresentative judiciary in our kind of government.’ ”

Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315 (1984) (quoting

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Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-1179 (C.A.D.C.1982) (Bork,

J., concurring)). In order to establish standing for purposes of the

constitutional “case or controversy” requirement, a plaintiff “must show

that he personally has suffered some actual or threatened injury as a

result of the putatively illegal conduct of the defendant,” Gladstone,

Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S. Ct. 1601, 1607

(1979), and that the injury “is likely to be redressed by a favorable

decision,” Simon v. Eastern Kentucky Welfare Rights Organization, 426

U.S. 26, 38, 96 S.Ct. 1917, 1924 (1976).

Here, it is doubtful that plaintiff has suffered the requisite tangible

effects of the City’s alleged failure to enforce local policy and state law

regarding secondary employment to assert a claim related to that conduct.

Even assuming plaintiff does possess the requisite standing, moreover, it

is clear that his claim lacks merit. As was previously discussed, New York

General Municipal Law § 208-d expressly authorizes members of a police

force to engage in extra work outside their regular hours of duty. While

section 128 of the New York Alcoholic Beverage Control Law prohibits

police officers from having a direct or indirect interest in the manufacture

or sale of alcoholic beverages, or to offer for sale, or recommend to any

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licensee any alcoholic beverages, section 128-a provides that the New

York State Liquor Authority “shall promulgate such rules and regulations

as may be necessary to provide that it shall not be unlawful for a police

officer employed in this state, having written permission and consent from

his commanding officer, to work in a premises licensed to sell beer at

retail for off-premises consumption . . ..” N.Y. ALCO. BEV. CONT. LAW §§

128, 128-a. Though specifically addressed to authorizing off-duty work13

on retail premises selling beer, New York courts have stated that this

provision does not “otherwise prohibit police officers from working for any

employer in or about a licensed premise, no matter how incidental is the

work to the sale of alcoholic beverages.” Rotunno v. City of Rochester,

120 A.D.2d 160, 164, 507 N.Y.S.2d 924 (4th Dep’t 1986), aff’d, 71 NY.2d

995, 524 N.E.2d 876 (1988).

In the case at bar, the City has produced undisputed evidence

showing that Ms. Otis was authorized, in accordance with the Syracuse

Police Department Rules and Regulations, to engage in secondary

employment at the Hotel to provide general physical security on the Hotel

In accordance with this provision, the New York Liquor Authority13

promulgated a rule permitting a police officer having written permission and consentfrom his or her commanding officer to engage in such off-duty work. See 9 N.Y.C.R.R.§ 100.1.

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grounds. In view of the foregoing, there is no basis for the plaintiff’s claim

that the City was negligent in failing to ensure compliance with New York

State Law.

IV. SUMMARY AND RECOMMENDATION

By his actions plaintiff has demonstrated disinterest in pursuing his

claims in this lawsuit, and in addition has flagrantly violated a court

directive, given twice, that he provide a proper oath to responses to the

defendant City’s interrogatories. In addition, plaintiff failed to appear at a

hearing scheduled to address an application by defendant City for

sanctions based upon that failure. Based upon the foregoing, and

exercising both the inherent powers of the court and its authority under

Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure, the court

could direct dismissal of plaintiff’s complaint for failure to comply with a

court order and to diligently prosecute his claims. I have chosen,

however, not to recommend disposition of plaintiff’s claims on this

procedural basis; instead, given my finding that defendants are entitled to

judgment as a matter of law dismissing each of plaintiff’s claims, I

recommend that defendants’ motions for summary judgment be granted

and that the defendants be awarded costs in connection with the City’s

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discovery-related motion. It is therefore, hereby respectfully

RECOMMENDED, that the summary judgment motions of defendant

the City of Syracuse (Dkt. No. 126) and The Genesee Grande Hotel (Dkt.

No. 128) be GRANTED, and that plaintiff’s complaint in this action be

DISMISSED; and it is further hereby

RECOMMENDED that the clerk be directed to enter judgment in

favor of the defendants and against the plaintiff in the amount of $3,235,

the sum awarded in costs and attorney’s fees on July 14, 2011 (Dkt. No.

24); and it is further hereby

RECOMMENDED that defendants be awarded costs and attorney’s

fees associated with defendant City’s recent motion for sanctions, the

court finding no basis to conclude that plaintiff’s failure was substantially

justified or that there are other circumstances that make an award of

expenses unjust, and that defendants be granted the opportunity to submit

affidavits and exhibits in support of their applications for costs and

attorney’s fees within fourteen days of the issuance of an order in

connection with this report and recommendation, and that plaintiff be

permitted to respond in opposition to the request for costs and fees within

fourteen days thereafter.

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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge

written objections to the foregoing report. Such objections must be filed

with the clerk of the court within FOURTEEN days of service of this report.

FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE

APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),

72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this

report and recommendation upon the parties in accordance with this

court’s local rules.

Dated: November 1, 2011Syracuse, NY

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IN THE UNITED STATES DISTRICT COURT FOR THE … · REPORT AND RECOMMENDATION ... Joanna Ramsey, as...

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